ARCHITECTS REGISTRATION BOARD

THE PROFESSIONAL CONDUCT COMMITTEE

ON

26 NOVEMBER 2007

Present:

Chairman:         Michael Williams
PCC Member:   Linda Read
PCC Member:  Stephen Brookhouse

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IN THE MATTER OF
JOHN MARSHALL (036913F)

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MR STEPHEN BATTERSBY appeared on behalf of the COMMITTEE
MR IAIN MILLER appeared on behalf of the BOARD
MR MARSHALL was not present and not represented

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Transcribed by Ubiqus
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CHARGE
The charge made against the defendant is that he is guilty of unacceptable professional conduct in respect of one or more of the following:-
(i) he did not provide his client with the terms of his engagement as required by Standard 11.1 of the Code of Conduct;
(ii) he failed to charge her in the stages that he had outlined in his letter dated 17 January 2006;
(iii) he did not hold Professional Indemnity Insurance after 20 October 2005 whilst practising as an architect, as set out in Standard 8 of the Code, and he did not have cover in respect of either his practice or run-off cover for previous activities;
(iv) he used the title architect during a period when he was not entitled to do so

DECISION
CHAIRMAN:  The allegations that have been brought against Mr Marshall today have been of unacceptable professional conduct in breach of Clause 14.1 of the Architects Act 1997.  The defendant did not attend and therefore information which might have been of assistance, both to himself and to the Professional Conduct Committee, was not available.  We are, therefore, obliged to work on the information and the evidence which has been produced to us by Mr Miller, the solicitor acting on behalf of the Architects Registration Board.
            We are satisfied with the evidence that has been led in respect of all four of the allegations that are made, and we do accept that they have been adequately proved.  They are, however, all aspects of the one issue of unacceptable professional conduct.  We propose, therefore, to comment very briefly on all four of the allegations but thereafter to give our views as to the appropriate penalty and there will of course be a single penalty arising out of the single breach of the Act.
            If I turn first to the first allegation, which very briefly is that the defendant, Mr Marshall, did not provide Mrs Brody with adequate terms of engagement.  The case as submitted to us by the ARB has limited the provisions of paragraph 11 of the Code quite specifically to two aspects alone, namely termination, or the lack of any termination provisions, and the lack of any explanation to the client that architects are subject to a disciplinary sanction of the Board in relation to complaints of unacceptable conduct. 
            In other circumstances there might have been other aspects of the architect’s conduct which we would have commented on but it is not our place to do so and we are therefore limiting our views simply to these two issues which were submitted to us as the basis upon which the finding of unacceptable professional conduct should be made.
            We note that Mr Marshall did make it clear that he was providing only a partial service for a very small job and it may well be therefore that he thought that a long letter of engagement and retainer was heavy-handed or unnecessary. We also take the view that the absence of those two particular aspects of information, which the Board say should have been made available to the client, did not actually impact on her significantly in this case.  On that basis we do not view the allegations as in the category of being very serious, though we accept that there is plainly a breach and Mr Marshall had a duty to incorporate this information and he failed to do so.
            If I turn now to the second allegation, which is that he failed to charge his client, Mrs Brody, in the stages that he had outlined in his original letter of appointment, then plainly he has failed to do what he promised to do.  His letter makes it quite clear that he was proposing to provide a breakdown and to render fees at various stages, to use his own terminology.  And this is important.  It is plain to us that Mrs Brody was very concerned about knowing what the basis of expenditure was.  Her letter, which does not actually seem to have a date but is plainly sent, by fax as well, on or very soon after the original letter of appointment of 17th January 2006, there is a handwritten endorsement which suggests it might actually have been the very same day but I do not think there is any doubt that it was sent pretty swiftly, made it clear that she wanted guidance as to the overall expenditure. 
            So the infraction of the professional duty which we think Mr Marshall had here was that having offered to provide a breakdown this did not occur, the client expressed concern about costs and she failed to get any kind of answer or explanation at all, so that the work proceeded in circumstances where it was and should have been plain to him that he had a duty to provide additional guidance about the fees quite separate from the obligations which are imposed in Standard 11.
            Turning to allegation 3, there is a clear breach of the duty to have insurance and the Board rightly attach considerable importance to this.  It is an essential requirement of the Code, Standard 8 puts the matter quite plainly, and I do not think there is or can be any suggestion that Mr Marshall misunderstood the position.  It is important not only that an architect should have current insurance to provide the necessary cover for the business which he is doing that day or that year but also that there should be adequate runoff cover, and it is not clear that the defendant has addressed that issue at all, indeed from his correspondence it seems likely that he has not taken any runoff cover but simply has ceased to practice very shortly before the 31st March of this year. The essential purposes of the whole regulation and disciplinary process for professions is to protect the public and to protect the reputation of the appropriate profession, in this case architects.  Our view is that both of those duties and responsibilities were broken by Mr Marshall.
            Turning finally to the fourth allegation, which is that he practiced whilst he was not registered as an architect to do so, the approach of paying subsequently, what I can perhaps describe in the vernacular as buying in and opting out, is unattractive because it effectively means that the person who is not registered, at least for some period of time, is relying on the remainder of those architects who are properly registered and effectively benefiting from the reputation that they properly have by adhering to the rules.  In this particular case Mr Marshall did pay his registration fee subsequently.  There appeared to have been a period of fifteen weeks when he was not registered.  The ARB, you may say prudently, takes back-payments for the whole of the year so de facto Mr Marshall obtained no financial benefit from the exercise.  Nonetheless, there was a period when he was not registered whilst he was dealing with this particular client and he should have been.
            I turn finally to the question of penalties.  Before doing so I do need to comment once again on the absence of Mr Marshall and how disappointing it is that he has not felt able either to appear or to give a clear explanation for his conduct.  We think it is quite likely that had he done so we would have been assisted in determining the degree of culpability and thus the quantum and extent of any penalty which we imposed.  Given that he has not done so, we have no alternative but to deal with this matter on a purely objective basis and with the information that has been given to us by the ARB.  Consequently, of course, the possibility of the fact that Mr Marshall is now retired, or indeed, as seems to be suggested in one point in some of the documentation which we have had drawn to our attention this morning, that he might have been subject to medical problems or other serious illnesses which would have impacted on him, are issues which we do not have an opportunity of taking into account.  It is not open to us to speculate and if Mr Marshall does not feel it appropriate to come and explain matters to us we have to impose penalties which we think are fair and just in the circumstances, but which, as I say, are not affected by the particular circumstances of the individual and it would have been open to us to take these matters into issue.
            So if I turn to Section 15 of the Architects Act, the Act itself, in examining very briefly the various options open to us. 
            Section 15(2A) provides a reprimand.  We do not think that that is appropriate in these circumstances, either because of Mr Marshall’s current work or non-workload, but also because of the nature of the allegations themselves.  Taken collectively, they are, in our view, matters which an architect would not have wanted to have been brought before us for.
            A penalty order does seem appropriate but I will come back to that in a minute.
            A suspended order, subparagraph C, is not really appropriate, for reasons which I have already explained.  It would appear that Mr Marshall is no longer in regular practice. 
            An erasure order is not appropriate either because although there are aspects of his conduct, including in particular the failure to obtain insurance, which could have been serious, we think that in this case it is at least primarily, if not exclusively, a matter which has been overlooked.  That does not justify it at all but it is plainly a factor which needs to be taken into account, he was not objecting as a matter of principle.
            So we are left therefore only with a penalty order and the combination of various issues which I have already sought to deal with on an individual basis persuade us that a sum of £1,000 by way of a penalty be appropriate and we would ask that the defendant pay this within a period of 28 days.